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Machi and Chep SA (Pty) Ltd and Others (DA22/2023) [2026] ZALAC 3 (19 January 2026)

80 Reportability
Labour Law
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Brief Summary

Labour Law — Dismissal of an employee — Appeal against Labour Court decision dismissing application to review arbitration award — Arbitrator found dismissal substantively fair due to unexpressed fourth allegation of misconduct — Labour Court upheld award — Appeal dismissed.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an appeal to the Labour Appeal Court against a judgment of the Labour Court, which had dismissed an application to review and set aside part of a CCMA arbitration award. The appeal was pursued with the leave of the Labour Court.


The appellant, Ms Nontobeko Lliona Machi, was a former employee of the first respondent, CHEP SA (Pty) Ltd. The second respondent was the Commission for Conciliation, Mediation and Arbitration (CCMA), and the third respondent was Bess Pillemer N.O., the commissioner who issued the arbitration award.


The dispute arose from the appellant’s dismissal for alleged misconduct. Internally, the employer convened a disciplinary enquiry and dismissed the appellant. The appellant then referred an unfair dismissal dispute to the CCMA, where the commissioner found the dismissal procedurally unfair but substantively fair, and awarded two months’ salary compensation. The appellant sought review in the Labour Court, contending that the commissioner had committed a reviewable irregularity by effectively finding her guilty of an “unexpressed fourth allegation” not contained in the charge sheet. The Labour Court rejected that complaint and refused to set the award aside. The present proceedings were an appeal against that refusal.


The general subject-matter was therefore the fairness of dismissal and, more specifically, the permissibility in arbitration and review proceedings of determining substantive fairness on the basis of misconduct framed as an unexpressed/derivative allegation where the charge sheet did not expressly formulate it as a separate count.


2. Material Facts


The appellant was employed by CHEP SA (Pty) Ltd as a Senior Human Resources Business Partner (HR Manager) from 3 May 2016. The events leading to the dismissal arose in July 2017, following the employer’s dismissal of a colleague, Mr Kagiso Malepe, for fraud involving R1.7 million.


On 6 July 2017, the appellant was scheduled to attend a company event in Cape Town, the “Achievers Awards”, in the afternoon. On the morning of the event, she contacted her manager, Ms Monika Ferdin, and requested permission to miss the event and return early to Durban, stating that she was unwell and emotionally shocked due to Mr Malepe’s recent suspension for alleged fraud. Permission was granted and the appellant returned to Durban that morning.


It was common cause that, after landing in Durban during normal business hours, the appellant did not go home and did not go to CHEP’s offices. Instead, she went to the premises of Zala Corporates, where she chaired a disciplinary hearing. It was also common cause that she later issued a finding in that disciplinary matter and described herself as the “HR Director” of Zala Corporates, despite also being neither a director nor an employee of Zala Corporates.


Following an investigation, CHEP served the appellant with a notice to attend a disciplinary enquiry containing three charges. The first charge related to alleged gross negligence in the recruitment process concerning Mr Malepe and was treated as not directly relevant to the appeal. The second charge alleged dishonesty in that the appellant told her manager she was unwell to avoid the Achievers Awards while having pre-booked her return flight, said to show she never intended to attend. The third charge alleged gross misconduct in that she failed to inform CHEP that she was “acting as a Director” of Zala Corporates, allegedly breaching the Brambles Code of Conduct prohibiting conflicts of interest including outside employment.


At the internal disciplinary enquiry, the chairperson found the appellant guilty on all three charges and recommended summary dismissal, which the employer implemented. The chairperson’s reasoning, as recorded in the judgment, expressly referred to abuse of trust and stated it was not disputed that the appellant engaged in other work for another company during company time, and also found that she acted as a director of Zala Corporates during working hours.


At the CCMA arbitration, the commissioner found the appellant not guilty of all three formal charges listed in the notice to attend the disciplinary enquiry, including finding no proof of dishonesty in the flight booking (charge 2) and no evidence that the appellant was a director or employee of Zala Corporates as required for the specific code breach alleged (charge 3). However, the commissioner identified an “unexpressed fourth allegation” emerging from the evidence, framed as misconduct destroying the employment relationship because the appellant, after being released from work obligations on the basis of illness, performed work for another concern during working hours and held herself out as a director of that concern in the disciplinary finding. On that basis, the commissioner held the dismissal substantively fair, despite finding it procedurally unfair, and awarded two months’ salary compensation.


In the review proceedings, the Labour Court accepted that the conduct of chairing the Zala hearing during office hours formed part of the case against the appellant and part of the reasons for dismissal, and held that the commissioner had not impermissibly created a new charge. The Labour Court further accepted dismissal as a fair sanction, given the dishonesty and breach of trust implicated by the appellant’s conduct.


3. Legal Issues


The central legal question was whether the commissioner committed a reviewable irregularity (as contemplated in section 145 of the Labour Relations Act 66 of 1995) by finding the appellant guilty of misconduct described as an “unexpressed fourth allegation” that was not expressly formulated as a charge in the disciplinary notice, and by upholding dismissal on that basis.


This required the court to determine whether the commissioner’s approach amounted to impermissibly crafting a new and different charge to justify dismissal, or whether the commissioner permissibly identified the substance and gravamen of the employer’s case from the established factual matrix, consistent with the principle that labour adjudication should not adopt an unduly formalistic approach to the wording or categorisation of disciplinary charges.


The dispute thus concerned the application of legal principles to the factual matrix (including questions of adequate notice, prejudice, and the permissible scope of an arbitrator’s characterisation of misconduct), assessed through the lens of the reasonableness and review threshold applicable to arbitration awards.


A further issue was whether dismissal was a reasonable sanction in light of the appellant’s senior HR role and the employer’s disciplinary code, which was said to prescribe a lesser sanction (a final warning) for “private work during office hours”.


4. Court’s Reasoning


The Labour Appeal Court approached the appeal by focusing on whether the commissioner’s award, as upheld by the Labour Court, was one that a reasonable decision-maker could reach, and whether the commissioner’s handling of the “unexpressed fourth allegation” fell within permissible bounds rather than constituting a gross irregularity.


The court accepted the Labour Court’s reasoning that the “unexpressed fourth allegation” was not a genuinely new or alien charge introduced by the commissioner mero motu, but a label describing misconduct that had been embedded in the employer’s case throughout. The court emphasised that the misconduct narrative was centred on the events of 6 July 2017, and that the expressed charges (particularly charges 2 and 3) were connected facets of a single factual narrative. On this reasoning, the fact that the appellant chaired a disciplinary hearing for Zala Corporates after being released from attending a work event on grounds of illness served as the factual link underpinning the employer’s case on dishonesty and breach of trust, and had already featured in the disciplinary chairperson’s findings.


In applying the relevant legal principles, the court treated EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others as dispositive of the approach to the formulation of charges. The principle extracted and applied was that adjudicators should avoid an overly technical approach to the categorisation of misconduct, and that what is generally required is that an employee has adequate notice of the act of misconduct alleged, with the categorisation being of lesser importance. The court further relied on the idea that prejudice will not be present if the record shows the employee would not have conducted the defence differently had a “competent verdict” or alternative characterisation been raised expressly.


The appellant’s attempt to distinguish EOH Abantu was rejected. The court reasoned that the operative principle was broader than misdescription of a known act; it was focused on whether the employee understood the substance of the allegation and suffered no prejudice. The court accepted that the appellant had adequate awareness, drawn from the charge sheet, the disciplinary report, and the arbitration process (including cross-examination and argument), that the employer’s case concerned the alleged abuse of trust arising from claiming illness to be released from duties and then undertaking work for another entity during working time.


The court distinguished the authorities relied upon by the appellant, including Palluci Home Depot (Pty) Ltd v Herskowitz and Others and SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others, on the basis that those matters involved reliance on distinct and unrelated acts of misconduct not forming part of the employer’s case. In contrast, the “unexpressed” allegation in the present matter was treated as the heart of the narrative that had been advanced against the appellant from the outset.


On sanction, the court agreed with the commissioner and the Labour Court that dismissal fell within the band of reasonableness. The court emphasised the appellant’s senior HR position, characterising it as a role demanding high levels of integrity and trust as a custodian of policy and ethics. The court considered that performing work for a third party during company time after obtaining permission to leave a work event on the basis of illness, coupled with presenting herself as a director of that entity, was sufficiently serious to damage trust.


The court relied on Autozone v Dispute Resolution Centre of Motor Industry and Others, applying the principle that where misconduct reveals a stratagem of dishonesty or deceit, an employer will probably lose trust in the employee. The court also accepted that disciplinary codes are guidelines rather than binding “straitjackets”, and held that the seriousness of misconduct must be assessed contextually, especially given the seniority of the role and the implications for trust.


5. Outcome and Relief


The Labour Appeal Court dismissed the appeal and upheld the Labour Court’s dismissal of the review application. The consequence was that the commissioner’s award remained operative, including the finding that the dismissal was procedurally unfair but substantively fair, and the award of two months’ salary compensation for procedural unfairness.


As to costs, although both parties sought costs if successful, the court made no order as to costs, stating that fairness and equity were best served by that outcome.


Cases Cited


ABSA Brokers (Pty) Ltd v Moshoana NO & others (2005) 26 ILJ 1652 (LAC), [2005] 10 BLLR 939 (LAC).


Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2014] ZALAC 81; [2015] 5 BLLR 484 (LAC).


SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others [2023] ZALCJHB 63; [2023] 6 BLLR 581 (LC).


EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2019] ZALAC 57, (2019) 40 ILJ 2477 (LAC).


Autozone v Dispute Resolution Centre of Motor Industry and Others [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC).


Legislation Cited


Labour Relations Act 66 of 1995, section 145.


Rules of Court Cited


No specific rules of court were cited in the judgment.


Held


The Labour Appeal Court held that the commissioner did not commit a reviewable irregularity by identifying and determining misconduct described as an “unexpressed fourth allegation”, because that misconduct was not a new or unrelated basis for dismissal but was embedded in the factual narrative and had been ventilated in the disciplinary and arbitration processes.


The court held that the appellant had adequate notice of the substance of the misconduct case and suffered no prejudice in presenting a defence, rendering a formalistic focus on charge formulation inappropriate in the circumstances.


The court further held that dismissal was a reasonable sanction in context, given the appellant’s senior HR position and the trust implications of the conduct, and that disciplinary codes operate as guidelines rather than fixed constraints on sanction.


LEGAL PRINCIPLES


The judgment applied the principle that in assessing the fairness of dismissal in arbitration, adjudicators should avoid an overly formalistic or technical approach to the categorisation of disciplinary charges. What matters primarily is whether the employee had adequate notice of the alleged misconduct in substance and whether the employee suffered prejudice in preparing and presenting a defence.


The judgment applied the principle that an arbitrator may, where justified by the record and without prejudice, determine substantive fairness on the basis of the true gravamen of misconduct emerging from the factual matrix, even where the employer’s charge sheet is inelegantly drafted, provided the determination remains rooted in the employer’s case and the evidence led.


The judgment applied the principle that where misconduct involves dishonesty or deceit, particularly in a manner undermining the trust relationship, dismissal may be justified, and in such circumstances an employer’s disciplinary code is treated as a guideline requiring contextual application rather than as an inflexible tariff.

THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Case No: DA 22/2023
In the matter between:
NONTOBEKO LLIONA MACHI Appellant
and
CHEP SA (PTY) LTD First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
BESS PILLEMER N.O. Third Respondent
Heard: 9 September 2025
Delivered: 19 January 2026
Coram: Mahalelo ADJP, Nkutha-Nkontwana JA et Djaje AJA
Summary: Labour Law - Dismissal of an employee - Arbitration Proceedings -
whether the Arbitrator committed an irregularity when he found the employee
guilty of an unexpressed charge – Labour Court finding no reviewable
irregularity - Dismissal confirmed on appeal


JUDGMENT

(1) Reportable
(2) Of interest to other Judges: Yes
(3) Revised

____________
Signature Date

2
MAHALELO, ADJP

[1] This is an appeal against the judgment and order of the Labour Court
delivered on 23 May 2023, in which it dismissed the appellant’s application to
review and set aside a portion of the arbitration award of the third respondent
(the Commissioner). The appeal is with leave of the Labour Court.
[2] The Commissioner had found that while the a ppellant’s dismissal was
procedurally unfair, it was substantively fair.
[3] The following aspects were not in issue in the review proceedings:
3.1. The suspension of the appellant was corr ectly found to be an unfair
labour practice,
3.2. The dismissal of the appellant was correctly found to be procedurally
unfair, and the commissioner correctly found the appellant not guilty of
all three misconduct charges appearing in the notice to attend the
disciplinary proceedings.
[4] The appellant is a former employee of the first respondent . The arbitration
proceedings related to a dispute between the appellant and the first
respondent about the fairness of the employee’s dismissal from the first
respondent’s employ.
[5] Before I deal with the merits of the appeal , it is necessary to set out the facts
relating to this matter.
Background Facts
[6] The appellant, Ms Nontobeko Machi , is a former employee of the first
respondent. She was employed by the first respondent (CHEP), a subsidiary
of Brambles, as a Senior Human Resources Business Partner (HR Manager)
from 3 May 2016.

3
[7] The events leading to her dismissal originated in July 2017. In July 2017, the
first respondent dismissed Mr Kagiso Malepe for defrauding it to the tune of
R1.7 million . Mr Malepe had been appointed as the Learning and
Development Manager of the first respondent.
[8] The appellant was scheduled to attend the company’s ‘ Achievers Awards ’
event in Cape Town on the afternoon of 6 July 2017. On the morning of 6
July, she contacted her manager, Ms Monika Ferdin, and requested
permission to miss the event and return early to Durban. She explained that
she was feeling unwell and emotionally shocked due to the recent suspension
of her colleague, Mr Kagiso Malepe, for the alleged fraud.
[9] Ms Ferdin granted this permission. The a ppellant flew back to Durban on the
morning of 6 July. It is common cause that upon landing in Durban during
normal business hours, the a ppellant did not go home or to CHEP’s offices.
Instead, she went to the premises of a company called Zala Corporates,
where she chaired a disciplinary hearing. Subsequently, she issued a finding
in that matter in which she described herself as the ‘ HR Director ’ of Zala
Corporates. It is also common cause that the a ppellant was neither a director
nor an employee of Zala Corporates.
[10] Following an investigation, CHEP served the appellant with a notice to attend
a disciplinary enquiry containing three charges:
Charge 1: Gross Negligence relating to the recruitment process of Mr Malepe
(this charge is not directly relevant to this appeal).
Charge 2: Dishonesty, in that she told her manager that she was unwell to
avoid the Achievers Awards, while having pre- booked her return flight,
demonstrating that she never intended to attend.
Charge 3: Gross Misconduct for failing to inform CHEP that she was ‘ acting
as a Director’ of Zala Corporates, in breach of the Brambles Code of Conduct,
which prohibits conflicts of interest, including outside employment.

4
[11] The chairperson of the internal disciplinary enquiry found the a ppellant guilty
of all three charges. In the reasoning for the finding on charge 2, the
chairperson noted that the appellant had “abused the trust relationship” and
that “it was not disputed that she then engaged in other work for another
company during Company time”. For charge 3, the chairperson found that she
had “acted as a Director of Zala Corporates during working hours ”. The
chairperson concluded that the trust relationship was irreparably broken and
recommended summary dismissal, which CHEP implemented.
The Arbitration and the ‘Unexpressed Fourth Allegation’
[12] Dissatisfied with the outcome of the disciplinary hearing, the a ppellant
referred an unfair dismissal dispute to the CCMA. The issue for determination
in the arbitration was whether the dismissal of the employee was
substantively and procedurally fair or not. The Commissioner, in her award,
found that the appellant was not guilty of all three formal charges. Specifically,
on charge 2, she found no proof of dishonesty in the flight booking. On charge
3, the Commissioner found no evidence that the a ppellant was a director or
employee of Zala, thus no breach of the specific Code clause. However, the
Commissioner identified what she termed an ‘ unexpressed fourth allegation’
that emerged from the evidence. She formulated this as the a ppellant being
guilty of misconduct that destroyed the employment relationship when, during
normal business hours and after being given permission to miss the event in
Cape Town due to her not feeling well, she chaired a disciplinary hearing for
another business concern and in the finding described herself as a director of
that concern. The Commissioner found the appellant guilty of this misconduct
and held that her dismissal was substantively fair, albeit procedurally unfair,
awarding her two months’ salary compensation.
The Review Proceedings

awarding her two months’ salary compensation.
The Review Proceedings
[13] Aggrieved by the Commissioner’s award, the appellant launched an
application in the Labour Court for the review and setting aside of the award ,
essentially on the gr ounds that the Commissioner had committed a gross
irregularity by, mero motu, creating a new charge, finding her guilty of it, and

5
imposing a sanction of dismissal where the disciplinary code prescribed only a
final warning for such an offence.
[14] In dismissing the review application , the Labour C ourt agreed with the
Commissioner that the allegation of cha iring a disciplinary hearing for Zala
Corporates during office hours was part of the charges levelled against the
appellant and it formed part of the reasons for her dismissal. The court a quo
found that the C ommissioner had not me ro motu formulated the unexpressed
fourth charge; instead the unexpressed fourth charge was a derivative of
charges 1 and 2. On the question of sanction, the Labour Court found that the
sanction of dismissal was fair because the conduct of the appellant involved
serious dishonesty as she claimed to be unwell and left Cape Town early
without attending the A chievers Awards, but she was fit enough to chair a
disciplinary inquiry of an outside company when she arrived in Durban.
The Appeal and Submissions of the parties
[15] The appellant’s case is built on a foundational principle of labour law that the
fairness of a dismissal must be determined with reference to the reason for
which the employer actually dismissed the employee. It was argued on behalf
of the appellant that the dismissal letter which she received from the employer
unequivocally stated that she was dismissed for being found guilty of the three
specific charges. The act of chairing the Zala disciplinary hearing was not one
of these charges , and this was, at best, used as evidence or an aggravating
factor for charges 2 and 3. The appellant contended that the Commissioner,
after correctly acquitting her of the formal charges, could not then formulate a
new, different charge to justify the dismissal. This, it was contended on her
behalf, is a gross irregularity that vitiates the award. The appellant’s argument
relied on a line of authority, including ABSA Brokers (Pty) Ltd v Moshoana NO

relied on a line of authority, including ABSA Brokers (Pty) Ltd v Moshoana NO
& others 1, Palluci Home Depot (Pty) Ltd v Herskowitz and O thers2 (Palluci
Home Depot) , and SAMWU obo A N Malatsi v South African Local
Government Bar gaining Council and Others 3 (SAMWU obo Malatsi) , which

1 (2005) 26 ILJ 1652 (LAC), [2005] 10 BLLR 939 (LAC).
2 [2014] ZALAC 81; [2015] 5 BLLR 484 (LAC).
3 [2023] ZALCJHB 63; [2023] 6 BLLR 581 (LC).

6
emphasises that an arbitrator cannot craft a new charge to salvage a
dismissal.
[16] The appellant distinguishes the case of EOH Abantu (Pty) Ltd v C ommission
for Conciliation, Mediation and A rbitration and Others 4 (EOH Abantu), relied
upon by the first respondent and the court a quo, arguing that it applied only
to ‘competent verdicts ’ or mischaracterisation of a known act, not the
introduction of a completely new factual allegation.
[17] The first respondent’s case is that the Commissioner did not invent a new
charge but rather correctly identified the true, core misconduct that was
always embedded in the evidence and the narrative of the case against the
appellant.
[18] It was argued before us on behalf of the first respondent that from the
disciplinary hearing through to the arbitration, the central issue was the
appellant’s abuse of trust, claiming to be unwell to be released from a work
function, and then immediately performing work for a third party during
company time.
[19] The first respondent point ed to the disciplinary chairperson’s report, the
opening address at arbitration, and the extensive cross -examination of the
appellant on this precise point, to demonstrate that she was fully aware of the
case she had to meet.
[20] The first respondent relied heavily on EOH Abantu 5, which held that a
formalistic approach to charges should be avoided. The first respondent
contended that the key question is whether the appellant had adequate notice
of the misconduct alleged and was not prejudiced in mounting a defence.
[21] The first respondent submitted that the a ppellant’s own closing arguments at
arbitration, where she specifically addressed the allegation of “ performing
private work during office hours ”, shows that she was alive to the issue and
was not prejudiced.

4 [2019] ZALAC 57, (2019) 40 ILJ 2477 (LAC).
5 Supra.

7
[22] On the issue of sanction, the first respondent argued that, given the
appellant’s senior HR role, where trust and integrity are paramount, her
conduct made the continuation of the employment relationship with the
respondent intolerable, justifying dismissal despite any guideline in a
disciplinary code.
[23] The core issue in this appeal is whether the Commissioner committed a
reviewable irregularity by finding the appellant guilty of, and dismissing her
for, what was termed an ‘unexpressed fourth allegation’ of misconduct, which
was not explicitly listed in her charge sheet. Put differently, the central legal
question is whether the Commissioner’s approach in dealing with the
‘unexpressed fourth allegation’ falls within the bounds of what is permissible in
an arbitration, or whether it constitutes a gross irregularity as contemplated in
section 145 of the LRA.
[24] I am persuaded by the reasoning of the court a quo and the arguments of the
first respondent. The Commissioner’s award, in this regard, is not one that a
reasonable decision- maker could not reach. First, it is necessary to
contextualise the ‘ unexpressed fourth allegation’ . A careful reading of the
record reveals that this was not a new or alien concept introduced by the
Commissioner. Rather, it was a succinct and accurate label for the conduct
that formed the gravamen of the employer’s case from the outset. The
charges, while perhaps inelegantly drafted, were part of a single narrative , the
events of 6 July 2017. Charge 2 (dishonesty about her illness) and Charge 3
(conflict of interest through a directorship) were two facets of the same core
conduct. The evidence led at the disciplinary hearing and the arbitration, that
she chaired a hearing for Zala after being released on grounds of illness , was
the factual bridge between these two charges. The disciplinary hearing
chairperson explicitly relied on this conduct in his findings. The Appellant’s

chairperson explicitly relied on this conduct in his findings. The Appellant’s
own representative at arbitration felt the need to warn the Commissioner
about the prevalence of this evidence, indicating he was acutely aware of its
centrality to the case.

[25] Second, the legal principles in EOH Abantu are directly applicable and
dispositive. This Court in EOH Abantu held:

8
‘[15] … courts and arbitrators must not adopt too formalistic or technical an
approach. It normally will be sufficient if the employee has adequate
notice and information to ascertain what act of misconduct he is
alleged to have committed. The categorisation by the employer of the
alleged misconduct is of less importance.

…
[17] … there is no requirement that competent verdicts on disciplinary
charges should be mentioned in the charge sheet... Prejudice is
absent if the record shows that had the employee been alerted to the
possibility of a competent verdict on a disciplinary charge he would not
have conducted his defence any differently or would not have had any
other defence.’
[26] The appellant’s attempt to distinguish EOH Abantu is unconvincing. While the
charge in that case mentioned the act but mischaracterised it, the principle is
broader: the focus is on the employee’s knowledge of the substance of the
allegation, not its legal label. Here, the Appellant knew from the charge sheet,
the disciplinary report, and the employer’s opening address that her conduct
on 6 July 2017, specifically chairing the Zala hearing after being released due
to illness, was the fundamental issue. She led evidence and made arguments
specifically to re but the implication of dishonesty and breach of trust arising
from this conduct. She cannot credibly claim that she was ambushed or
prejudiced.
[27] The authorities cited by the Appellant, such as Palluci Home Depot and
SAMWU obo Malatsi, are distinguishable. In those cases, the arbitrators relied
on completely distinct and unrelated acts of misconduct that were never part
of the employer’s case. That is not the situation here. The ‘ unexpressed
allegation’ was the very heart of the narrative presented by the employer; it
was the factual matrix from which the expressed charges sprang.
[28] On the question of sanction, the Commissioner and the court a quo were
correct. The appellant held a senior and sensitive position in the HR

9
department, a function where the incumbent is a custodian of company policy,
ethics, and trust. Her conduct of using company time under the guise of
illness to perform work for a third party, while holding herself out as a director
of that entity, demonstrated a profound lack of judgment and integrity. This is
precisely the kind of conduct that irreparably damages the trust relationship.
As held in Autozone v Dispute Resolution Centre of Motor Industry and
Others
6 that:
‘where the offence in question reveals a stratagem of dishonesty or deceit, it
can be accepted that the employer probably will lose trust in the employee.’
[29] While the first r espondent’s disciplinary code may list ‘ private work during
office hours’ as an offence typically warranting a final warning, such codes are
guidelines, not straitjackets. The seriousness of the misconduct must be
assessed in context. In this context, the act was not a mere technical breach
but a fundamental betrayal of trust, aggravated by the seniority of the
appellant’s role. The sanction of dismissal was therefore within the band of
reasonableness.
Conclusion
[30] In summary, the Commissioner did not commit a gross irregularity. She
identified the true reason for the dismissal of the appellant that was evident
from the evidence, and which the appellant had a full opportunity to defend.
Her finding that this misconduct destroyed the trust relationship and justified
dismissal is one that a reasonable decision -maker could reach. The Labour
Court was correct in refusing to interfere with the award.
Costs
[31] As to costs, both parties asked for costs in the event of being success ful on
appeal. It is my view that fairness and equity will be best served by not
making any cost order.
[32] I therefore make the following order:

6 [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC).

10
Order
1. The appeal is dismissed.
2. There is no order as to costs.

MB Mahalelo
Acting Judge of the Labour Appeal Court

Nkutha- Nkontwana JA et Djaje AJA concur.

APPEARANCES:
For the Appellant: B Mgaga (Attorney)
Instructed by: Garlicke & Bousfield Inc.

For the First Respondent: L Frahm-Arp (Attorney)
Instructed by: Fasken (Incorporated in South Africa as Bell Dewar Inc)

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